U.S. Supreme Court

The Monte Allegre, 22 U.S. 9 Wheat. 616 616 (1824)

Upon a sale by the marshal under an order of the court, no warranty is implied.

Neither the marshal nor his agent the auctioneer has any authority to warrant the article sold.

Quaere how far the marshal is responsible to the vendee in his private capacity if he undertake to warrant or to do what would imply a warranty in a private sale?

Upon an admiralty proceeding in rem, where the proceeds of the sale are brought into court, they are not liable to make good a loss sustained by the purchaser, in consequence of a defect being discovered in the article sold.

The appellant, Thomas Tenant, filed his petition on 14 November, 1821, in the Circuit Court for the Maryland District, setting forth that at a public sale of part of the cargo of the ship Monte Allegre, under an interlocutory order of the district court in the case of Joaquim Jose Vasques, Consul-General of Portugal, against the ship Monte Allegre, and her cargo, he became the purchaser of six hundred and fifty-three seroons of Brazil tobacco, part of said cargo, for which he paid to the marshal of the district, under whose superintendence the sale was conducted, $15,495.46. That the tobacco was sold by samples which were sound and merchantable, and that, believing the bulk of the tobacco

corresponded in this respect with the samples, he became the purchaser. That shortly afterwards, he exported the whole of the tobacco so purchased to Gibraltar, and after its arrival there it was found, upon examination, to be wholly unsound and unmerchantable, the greater part being entirely rotten, and the remainder unsalable but at very reduced prices, and was in fact sold for $4,818.52.

The appellant in his petition further alleges that the tobacco received no damage in its transportation to Gibraltar, but was, at the time it was sold by the marshal, wholly unsound, rotten, and unmerchantable; that the cause in which the order was passed, by virtue of which the tobacco was sold, was still pending in this court, and that the proceeds of said sale remained in the circuit court under its authority and control, and thereupon prayed for such relief as, upon proof of the allegations, he might be considered by the court entitled to.

To this petition an answer was filed on 2 May, 1822, in the name of Joaquim Jose Vasques, Consul-General of Portugal, on behalf of the owners of the proceeds of the ship Monte Allegre and her cargo, resisting the claim of the appellant:

1. Because the court had no jurisdiction or power whatever to sustain the petition inasmuch as it was calling on the court to award damages on a claim in the nature of an action for a deceit or on a warranty as an incident to a cause in its nature wholly of admiralty and maritime cognizance,

the claim being entirely of common law jurisdiction, and could not be made an incident to that which appertains exclusively to the admiralty. And secondly the claim was resisted upon the merits. Proofs were taken on both sides in the court below and a decree pro forma was entered by consent dismissing the petition with costs, on which the cause was brought by appeal to this Court.

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